]]>Army Sgt. Bowe Bergdahl’s request to have desertion and misbehavior charges against him dismissed are understandable, says a military lawyer, but unlikely to succeed.

On Monday, before a military judge at Fort Bragg, lawyers for Bergdahl — who walked off his post in Afghanistan in 2009 and is accused of endangering the lives of soldiers who searched for him – pushed for the charges to be dismissed because of statements Donald Trump made during his presidential campaign condemning Bergdahl and saying he should be severely punished.

They argue that because of now-President Trump’s prior comments, their client cannot get a fair trial.

The judge, Army Col. Jeffery Nance, didn’t immediately rule on the defense request, but called the footage of Trump condemning Bergdahl “disturbing material.” A written decision was expected later.

“The defense counsel validly could make that argument” about Trump tainting the possibility of due process, military law expert Greg Rinckey told Fox News. “But I believe a judge won’t find [Trump’s actions] are unlawful command influence. If Trump makes comments now, it clearly would be.”

Unlawful command influence refers to a commander saying or doing something that would taint as guilty a military defendant who is facing an accusation.

“If a commander strips rank before a court martial, or restricts a soldier from the barracks, or has everyone give him the silent treatment, that’s unlawful command influence,” Rinckey said.

Bergdahl is scheduled for trial in April and could face a life sentence if convicted of misbehavior before the enemy.

Defense attorneys argue that Trump violated Bergdahl’s due process rights by repeatedly calling him a “traitor” and making other harsh statements about the soldier. The defense motion, filed shortly after Trump was sworn in as president, cites more than 40 instances of Trump’s criticism at public appearances and media interviews through August 2016.

Defense attorneys argue that potential jurors may feel obligated to agree with their new leader and would have a hard time ignoring the criticism.

Prosecutors contend that any reasonable observer would understand that Trump’s comments amounted to campaign rhetoric and should not be taken literally.

They argue that Trump’s use of the term “traitor” was not meant in the legal sense, but in a conversational way.

Bergdahl, who is from Idaho, has said he walked off his post to cause alarm and draw attention to what he saw as problems with his unit.

The Army’s investigating officer has testified that Bergdahl did not mean to desert and did not intend to join the Taliban. The officer said that to have Bergdahl serve time in prison would be “inappropriate,” according to the New York Times.

Rinckey said that while the judge is not likely to dismiss the charges, Bergdahl’s contention that a jury cannot avoid knowing about and being influenced by Trump’s condemnation may result in some time – perhaps days, or a month, for instance – deducted off his sentence if he is convicted.

Another expert, Eric Carpenter, a former Army lawyer who teaches law at Florida International University, said to the Associated Press, however, that potential military jurors could be influenced by Trump’s comments even if he made them before becoming president.

“The prosecution is in a tough spot. These statements are really indefensible, and they have the job of defending them,” he said. “No one in the administration has disavowed those comments, so the comments still have life.”

The sergeant was held captive by the Taliban and its allies for five years. The Obama administration’s decision in May 2014 to exchange Bergdahl for five Taliban prisoners prompted some Republicans to accuse Obama of jeopardizing the nation’s safety.

]]>http://www.tullylegal.com/albany-ny/news/expert-judge-unlikely-to-dismiss-bergdahls-charges-because-of-trump-remarks/feed/0Legal Chat: Living wills and health care proxieshttp://www.tullylegal.com/albany-ny/articles/legal-chat-living-wills-and-health-care-proxies/
http://www.tullylegal.com/albany-ny/articles/legal-chat-living-wills-and-health-care-proxies/#commentsSun, 06 Nov 2016 19:54:21 +0000Tully Rinckey PLLChttp://www.tullylegal.com/albany-ny/?p=21369What is the difference between a living will and a health care proxy, and is it necessary to have both? The answer to this question is that it depends upon which state you live in. In the state of New …

What is the difference between a living will and a health care proxy, and is it necessary to have both?

The answer to this question is that it depends upon which state you live in. In the state of New York a living will and a health care proxy are different documents and accomplish different goals.

In New York State, a living will is a written expression of someone’s intent with regard to end of life decision-making and other important health care decisions. It can state under what conditions you do or do not want artificial nutrition and hydration, CPR, intubation or other medical interventions.

New York law does not contain a specific statute governing living wills; thus, the validity of a living will is decided by case law. The Court of Appeals, which is New York’s highest Court, ruled in the Matter of O’Connor (1988) that a living will is valid if it provides “clear and convincing” evidence of a person’s health care wishes.

A living will does not, however, appoint a specific person to make health care decisions for you.

A health care proxy is the document that appoints someone to make health care decisions for you in the event that you are unable to make those decisions for yourself. You can appoint a primary agent and a successor agent. However, unless your health care proxy is aware of your specific wishes regarding artificial nutrition and hydration, they cannot make end of life decisions for you.

That is why many times you will see a living will and a health care proxy executed together in a single form. Executing these documents together enables your agent to make whatever medical decisions may be necessary because your wishes are directly spelled out in the same document that appoints them. It also makes things easier for your doctor/treating professional because everything is in one place, and they do not have to look for two separate documents.

If you are thinking about executing a health care proxy or a living will, it is advisable that you contact an experienced estate-planning attorney to discuss your options, as there are specific execution requirements for these documents.

Greg T. Rinckey, Esq., is the managing partner at Tully Rinckey PLLC, a full-service law firm located in Colonie. For more information about the firm, please visit www.1888Law4Life.com. If you would like your legal question or topic answered in the next issue, please contact Greg Rinckey at 218-7100 or askthelawyer@1888law4life.com. The information in this column is not intended as legal advice.

(CNN)A Navy sailor facing prison time for taking photos of a classified area on a US nuclear attack submarine is asking a federal judge for leniency, citing the government’s decision not to indict Hillary Clinton for mishandling classified information.

Petty Officer First Class Kristian Saucier, a 29-year-old mechanic, admitted he used his personal cellphone on three occasions in 2009 to take six pictures of the submarine’s classified propulsion system while working in the engine room, according to court documents.

In a court filing, Saucier’s lawyer compares the half-dozen classified photos Saucier had in his possession to the 110 classified emails the FBI determined were on Hillary Clinton’s personal server.
“Mr. Saucier possessed six (6) photographs classified as ‘confidential/restricted,’ far less than Clinton’s 110 emails,” Derrick Hogan wrote to the US District Court in Bridgeport, Connecticut, in a story first reported by Politico.

Advocating for probation, Hogan said it would be “unjust and unfair” for Saucier — who has pleaded guilty — to do prison time “for a crime those more powerful than him will likely avoid.”

The federal government dismissed the comparison in a court filing Monday and instead asked the judge to sentence Saucier to more than five years behind bars at the sentencing hearing this Friday. The federal sentencing guideline ranges from 63 to 78 months.

“The defendant is grasping at highly imaginative and speculative straws in trying to further draw a comparison to the matter of Sec. Hilary (sic) Clinton based upon virtually no understanding and knowledge of the facts involved, the information at issue, not to mention any issues of intent and knowledge,” the prosecutors said in court papers.
Saucier, who served on the USS Alexandria submarine from September 2007 until March 2012, had a secret security clearance and admitted knowing he was not authorized to take the photos, which depicted classified material.

Still, Saucier’s lawyers claim his reason for taking the photos was benign.

“Mr. Saucier admitted that he knew when he took the pictures in 2009 that they were classified and that he did so out of the misguided desire to keep these pictures in order to one day show his family and his future children what he did while he was in the Navy,” Hogan wrote in a court filing.

Saucier’s conduct is different from Clinton’s email controversy, even his lawyers admit. The former secretary of state has said she did not knowingly send or receive emails that were classified, while Saucier has admitted knowing his conduct was illegal.

FBI Director James Comey, however, said his investigation found that “any reasonable person in Secretary Clinton’s position … should have known that an unclassified system was no place for that conversation” about classified matters. Comey also noted that a small number of the emails did bear markings indicating the presence of classified information, a fact that Saucier’s defense attorneys pointed to.

“I don’t think that we’re grasping at straws,” said Greg Rinckey, one of the defense attorneys representing Saucier. “I think the cases are similar. Are they apples to apples? No, absolutely not. However it’s now been shown that Secretary Clinton sent and received emails that were marked classified at the time contrary to her sworn testimony.”

]]>http://www.tullylegal.com/albany-ny/news/rinckey-hogan-on-saucier-case/feed/0“He took on this case with vigor and ZERO FEAR of the government!”http://www.tullylegal.com/albany-ny/testimonials/he-took-on-this-case-with-vigor-and-zero-fear-of-the-government/
http://www.tullylegal.com/albany-ny/testimonials/he-took-on-this-case-with-vigor-and-zero-fear-of-the-government/#commentsFri, 15 Apr 2016 18:19:48 +0000Tully Rinckey PLLChttp://www.tullylegal.com/albany-ny/?p=21230“LITERALLY THE BEST MONEY I EVER SPENT!!!! The USAF charged my son with Article 92, Violate General Order and Article 128, Simple Assault. I spoke to many attorneys who said to me, “Your son will be convicted of the Simple …

]]>“LITERALLY THE BEST MONEY I EVER SPENT!!!! The USAF charged my son with Article 92, Violate General Order and Article 128, Simple Assault. I spoke to many attorneys who said to me, “Your son will be convicted of the Simple Assault because putting lotion on someone’s face is considered an assault as it is an unwanted touch.” They all wanted me to work on a plea deal with the government that ended with my son being discharged, spending time in the brig and having a federal conviction for the rest of his life. Knowing that this just didn’t warrant a federal conviction, bad conduct discharge and time in the brig, I was on a search to find an attorney who would look at this case for what it was: a couple of 19-21 year-old immature young men horse playing. I was looking for someone who would say something different; someone who would be able to look at the case from more than one view. When I spoke to Mr. Rinckey, I thought I was going to get the same ole speech, but to my surprise, I IMMEDIATELY felt at ease and I knew right then that he was going to be my attorney (not sure if he knew it at this time). He took on this case with vigor and ZERO FEAR of the government! He wanted them to know that this was NOT going to go away with any plea deal! And he went to work! Then, LITERALLY 2 DAYS BEFORE trail the government added an additional charge, which was Article 134, Unlawful Entry. Mr. Rinckey stayed focused, developed a plan, and off to trail we went. He was so prepared, calm and at ease. I remember him saying to me, “I am ready to try this case.” And yesterday – 14 APR 2016 – my son was found NOT GUILTY on ALL CHARGES AND SPECIFICATIONS!!! Yesss!!! You know, it’s always hard to find money for an attorney, but I learned one thing with this case. Although I thought we couldn’t afford an attorney, the truth of the matter was that we couldn’t afford NOT TO HAVE an attorney. I only wish I had found Mr. Rinckey sooner, but that’s okay. I have found my ATTORNEY for life,” Y.W. on Founding Partner on Greg Rinckey, Esq. Prior results do not guarantee similar outcomes.

]]>http://www.tullylegal.com/albany-ny/testimonials/he-took-on-this-case-with-vigor-and-zero-fear-of-the-government/feed/0Senior Spotlight: Accommodations for Arthritis in the Work Placehttp://www.tullylegal.com/albany-ny/articles/senior-spotlight-accommodations-for-arthritis-in-the-work-place/
http://www.tullylegal.com/albany-ny/articles/senior-spotlight-accommodations-for-arthritis-in-the-work-place/#commentsThu, 25 Feb 2016 19:23:07 +0000Tully Rinckey PLLChttp://www.tullylegal.com/albany-ny/?p=21205Legal Chat: Accommodating arthritis on the job I have arthritis and cannot perform certain tasks at work for extended periods. Would my employer be required to accommodate me? Arthritis can slow the pace at which people work and make it …

Legal Chat: Accommodating arthritis on the job

I have arthritis and cannot perform certain tasks at work for extended periods. Would my employer be required to accommodate me?

Arthritis can slow the pace at which people work and make it more painful to perform certain duties, but only in extreme cases will this condition qualify as a disability covered by the Americans with Disabilities Act (ADA) or New York State Human Rights Law.

The ADA prohibits employers from discriminating against workers with a disability, which can be any “physical or mental impairment that substantially limits one or more of the major life activities of such individual,” the law’s implementing regulation states. In many cases, courts have found that arthritis that is not severe does not substantially limit one or more major life activities. Major life activities include “[c]aring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others and working.”

In Graham v. Three Village Central School District (2013), for example, the U.S. District Court for the Eastern District of New York noted that an employee would not be covered by the ADA when his arthritis only limited his “rate and pace of walking.” An employee would likewise not have an ADA-qualifying disability if his arthritis only “caused a noticeable limp and difficulty climbing stairs.” However, in Graham v. Macy’s Inc. (2015), the U.S. District Court for the Southern District of New York found that an employee with arthritis, which she claimed prevented her from walking or standing for extended periods of time, “adequately pleaded that [she] is disabled, as that term is defined in the ADA.”

Even though an employee may have a qualifying disability, it is crucial that an employee notify their employer about the need for a reasonable accommodation. Otherwise, as in Graham v. Macy’s Inc., a claim under the ADA may be dismissed if there is no evidence that the employer was notified about the disability or reasonable accommodation request.

Employees who are having difficulty performing certain tasks because of their arthritis, or any potential disability, should consult with an experienced employment law attorney.

Greg T. Rinckey, Esq., is a founding partner at Tully Rinckey PLLC, a full-service law firm located in Colonie. If you would like your legal question or topic answered in the next issue, please call 218-7100 or askthelawyer@1888law 4life.com. The information in this column is not intended as legal advice.

]]>http://www.tullylegal.com/albany-ny/articles/senior-spotlight-accommodations-for-arthritis-in-the-work-place/feed/0Senior Spotlight: Employer Asking About My Retirement, Could This Count As Harassment?http://www.tullylegal.com/albany-ny/articles/senior-spotlight-employer-asking-about-my-retirement-could-this-count-as-harassment/
http://www.tullylegal.com/albany-ny/articles/senior-spotlight-employer-asking-about-my-retirement-could-this-count-as-harassment/#commentsThu, 25 Feb 2016 14:37:05 +0000Tully Rinckey PLLChttp://www.tullylegal.com/albany-ny/?p=21200Legal Chat: When does it become harassment? My supervisor keeps asking me about when I will retire. Does that count as harassment? An employer’s inquiry about when an employee will retire can be unnerving, especially if the employee is not …

Legal Chat: When does it become harassment?

My supervisor keeps asking me about when I will retire. Does that count as harassment?

An employer’s inquiry about when an employee will retire can be unnerving, especially if the employee is not ready.

Depending on the frequency of retirement inquires and whether they were accompanied by age-related statements, they may violate state or federal laws against age discrimination.

While the federal Age Discrimination in Employment Act (ADEA) protects employees from age discrimination so long as they are 40 years of age or older, New York’s Human Rights Law prohibits age discrimination, regardless of age. It is important to note that under certain circumstances, employers can ask employees about their retirement plans or offer early retirement incentives. “The ADEA does not make all discussion of age taboo,” the 2nd Circuit U.S. Court of Appeals said in Raskin v. Wyatt Co. (1997).

In Raskin, for example, the president of the employer expressed concern that the plaintiff, who was 55 years old and seeking promotion to a managerial position, “would not remain with [the company] long enough to learn the manager’s job.” The 2nd Circuit said the employer “had a legitimate reason to confirm [the plaintiff’s] interest in a career change notwithstanding the possibility that [he] would have the option of taking early retirement.” Similarly, in Roundtree v. School Dist. Of City of Niagara Falls (2002), the New York Supreme Court, Appellate Division, found the employer was justified in asking the nearly 65-year-old plaintiff about his retirement plans “in light of the magnitude of the workforce reductions.”

However, not all retirement comments or inquiries are legitimate. Encouraging a 63-year-old waitress to retire, calling her a “stupid old yaya” and refusing to allow her to dress like younger waitresses could create a hostile work environment, the New York Supreme Court, Appellate Division, Third Department found in Anagnostakos v. New York State Div. of Human Rights (2007). Similarly, in Kassner v. 2nd Avenue Delicatessen Inc. (2007), the 2nd Circuit found comments made by a supervisor and co-workers to a 79-year-old waitress, such as “retire early,” “drop dead,” and “take off your wig,” could support a hostile work environment claim under the ADEA.

Employees who believe they have been subjected to age discrimination should immediately consult with an experienced employment law attorney.

In an effort to show appreciation for the sacrifices of active duty service members, veterans and their families, Tully Rinckey PLLC and Hannaford Supermarkets will once again provide free turkeys to active duty and retired military personnel this Thanksgiving through the seventh annual “Turkeys for Veterans” program.

Officials from Tully Rinckey PLLC and Hannaford Supermarkets will hand deliver approximately 2,400 pounds of turkey to active duty service members and veterans at the law firm’s headquarters at 441 New Karner Road in Albany on Tuesday, November 24 from 11 a.m. to 1 p.m. (Turkeys will be available on a first-come, first-serve basis with proof of military ID. Limit one turkey per person.)

This Thanksgiving marks the seventh year for the “Turkeys for Veterans” program. Since the program’s inception in 2009, Tully Rinckey PLLC has provided the Thanksgiving table centerpiece for the family members of nearly 1,000 active duty and retired military personnel in the greater Capital Region.

“This Thanksgiving, we are once again pleased to serve those who have done so much to serve our country,” said Tully Rinckey PLLC Founding Partner Mathew B. Tully, Esq., a decorated U.S. Army veteran and Purple Heart recipient. “We appreciate the sacrifices of active duty service members and veterans, and hope the turkeys we are providing remind them on Thanksgiving how grateful we are for their service.”

“All of us at Hannaford are honored to once again work with Tully Rinckey to offer a sense of comfort, home and warmth to those who so selflessly dedicate their lives to serving our country,” said Hannaford Supermarkets Community Relations Specialist Brian Fabre. “We look forward to serving those who serve this Thanksgiving.”

Tully Rinckey PLLC has a long-standing record of service with the military. Throughout its seven offices, the firm employs 70 attorneys, many of whom are veterans of the U.S. Army, Air Force, Marine Corps, and Navy, including the firm’s founding partners.

Tully is a recently-retired New York Army National Guard Lieutenant Colonel who received a Purple Heart and Bronze Star for his service in Afghanistan. As a civilian attorney, he has won numerous landmark decisions protecting veterans’ rights, especially those pertaining to the Uniformed Services Employment and Reemployment Rights Act. Greg T. Rinckey is a former active duty Army JAG who currently represents service members worldwide in a variety of military law issues.

Tully Rinckey PLLC is a full-service law firm with offices in Albany, Binghamton, Syracuse, Rochester, Buffalo, Washington, D.C., and San Diego, C.A. The firm is nationally recognized for its legal work in military law and is one of the Capital Region’s largest full-service firms with attorneys practicing divorce, child custody, military law, bankruptcy, real estate law, estate planning, civil litigation, criminal defense and employment law, among other practice areas.

Hannaford Supermarkets, based in Scarborough, Maine, operates 188 stores in the Northeast. Stores are located in Maine, New York, Massachusetts, New Hampshire, and Vermont. All Hannaford stores feature Guiding Stars, America’s first storewide nutrition navigation system and most stores have full-service pharmacies. Hannaford employs more than 27,000 associates. Additional information can be found at www.hannaford.com.

Federal Employees’ Right to Disobey Is Becoming Clearer

Feeling defiant? Good, because there is a growing body of Merit Systems Protection Board (MSPB) case law on the little known “right-to-disobey” rule from the Whistleblower Protection Act (WPA).

Finally, federal employees – and their lawyers – are now getting a better sense of what kind of orders can be disobeyed.

Obedience is the cornerstone of the efficiency of the service. It is so important that the government would rather have employees obey orders that would result in a bad decision – even ones that could result in the loss of millions of dollars – rather than cross a superior. In such situations, employees must “obey now, grieve later.” The exception to this rule pertains to situations where obedience would have resulted in “irreparable harm,” as the MSPB held in Cooke v. U.S. Postal Service (1995).

However, what the government does not like to point out is that “obey now, grieve later” relates to orders that would result in an employee violating a regulation or rule. But under 5 U.S.C. § 2302(b)(9)(D), agencies cannot “take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment…for refusing to obey an order that would require the individual to violate a law” (emphasis added).

A May 2014 report by the Office of Special Counsel noted that “[t]here is no case law directly addressing the application of (b)(9)(D).” But since then, case law on this “right-to-disobey” rule has been growing, and the most significant decision came last September in Rainey v. Department of State (2015). In this case, the appellant, a program director, refused to obey an order that would have made him violate agency regulation and a training course that clarifies the limits to his authority. He claimed the agency violated Section 2302(b)(9)(D) by stripping him of his job duties and giving him a subpar performance rating in retaliation for this disobedience.

The appellant argued that the U.S. Supreme Court’s decision in Department of Homeland Security v. MacLean (2015) called for a broader interpretation of the word “law” under Section 2302 (b)(9)(D) that would incorporate agency rules and regulations, such as the one he would have violated had he obeyed the order. But the MSPB said that the Supreme Court in MacLean, which focused on a neighboring provision of the WPA, “determined that Congress’s use of the narrower word ‘law’ was deliberate.” This is the very same argument I made in my amicus curiae brief to the high court. The MSPB held, “we hold that the right-to-disobey provision at section 2302(b)(9)(D) extends only to orders that would require the individual to take an action barred by statute.”

So what type of orders can employees refuse to obey if they were to result in a violation of law? The case law is still thin, but here are a few examples:

Orders that would result in the violation of laws pertaining to the certification of travel vouchers. Davis v. Department of Defense (2006) Orders to make Social Security disability claim awards higher than what is appropriate. Krafsur v. Davenport (2013)

Orders to backdate a signature on credit card transaction documents. Dick v. Department of Health and Human Services (2014). Note: the MSPB judge in this case “assumed” that the refusal to carry out such an order could be “construed as the…refusal to obey an order…to backdate his signature in violation of law” (emphasis added)

Disobeying an order, whether it would result in a violation of law or regulation, is a very serious matter. If an employee feels as though he must disobey, he or she should always consult first with an experienced federal employment law attorney, who could assess the situation and determine whether such an action would be protected. An attorney could also prepare an MSPB appeal or an OSC complaint in the event the employee is subjected to reprisal.

2015 Tully Rinckey PLLC. All rights reserved. This article may not be reproduced without express written consent from Tully Rinckey PLLC.

COLONIE – Colonie town supervisor candidate Christine Benedict thinks is accusing Democrats of impersonation and identity theft after a political mailer was sent out.

The mailer is supposed to look like a postcard. However, the writing on the back is a political ad by the Colonie Democratic Committee. It’s signed, “Chris Benedict.”

“It’s fraud. It’s identity theft. I’m very surprised she put my name to it,” said Benedict.

Written in the first person, the letter says Benedict owned a business in Florida, missed 23 meetings as a county legislator and is rarely around. Benedict says she didn’t miss that many meetings and she was part of a real estate company that had properties in Florida. Benedict’s lawyer says he talked with state police, the FBI, and soon a postal inspector about charging whoever sent this out with identity theft and impersonation.

“In 25 years of being involved in campaigns – a lot of them as an election lawyer dealing specifically with elections, I’ve never seen anything like this before,” said James Walsh, Benedict’s lawyer. “This is kind of crossing the line. Where you put somebody else’s name on the bottom line, it’s identity theft, it’s impersonation.”

We talked to criminal law attorney Greg Rinckey. He says this will come down to whether a reasonable person actually would think this is from Benedict. He thinks it is obviously a political ad. Because it doesn’t look like an actual signature and the Colonie Democratic Committee (“committee” spelled incorrectly with one “e”) is listed as the return address.

“Do I think there’s been any crime committed? In my opinion, I don’t believe there is. I don’t think a reasonable person will get this and think it is wasn’t an impersonation,” said Greg Rinckey, Tully Rinckey law firm.

NewsChannel 13 talked to incumbent Democrat Paula Mahan over the phone. She had no comment and said this is all on the Colonie Democratic Committee. NewsChannel 13 reached out to them, but haven’t received a response back yet.

Both candidates are debating at 8 p.m. Tuesday evening at the Radisson Hotel on Wolf Road in Colonie.

Even before hackers, presumably from China, stole from the Office of Personnel Management (OPM) sensitive personal information for millions of current and former federal employees and contractors, the government had been pushing to more frequently put security clearance holders under the microscope. Last year, Secretary of Defense Chuck Hagel said the Department of Defense (DOD) planned to implement, among other things, a continuous evaluation (CE) program to close “troubling gaps in DoD’s ability to detect, prevent, and respond to instances where someone working for us…decides to inflict harm on this institution and its people.”

The OPM data breach has turned those “troubling gaps” into deeper chasms. Now there is growing pressure to ramp up the implementation of such CE programs, which automatically and continually comb through over 40 databases for information pertaining to arrests, foreign travel, large-currency transactions and other incidents. According to the Office of the Director of National Intelligence (DNI), select executive branch departments and agencies this fiscal year will have CE capabilities for part of the top secret/sensitive compartmentalized information (TS/SCI)-cleared population. The goal is to expand such capabilities to all TS/SCI-populated agencies and departments by the end of 2016. This means that potentially disqualifying security incidents will be detected more easily and rapidly, causing a multitude of concerns for federal employees and contractors and military personnel. However, the Government Accountability Office recently issued a report in which it said, “executive-branch agencies face challenges in implementing certain aspects of the 2012 Federal Investigative Standards, including establishing a continuous evaluation policy.”

Nevertheless, the impact of CE initiatives on employees and contractors – when fully implemented – will be sweeping. It has always been important for security clearance holders to promptly report incidents, such as arrests, and to quickly resolve certain issues, such as financial problems. However, CE will make such promptness doubly important. CE will leave employees and contractors with little time to delay in reporting such incidents or resolving problematic issues. During a pilot of DOD’s Automated Continuous Evaluation System (ACES), 21.7 percent of 3,370 Army service members, civilian employees and contractor personnel were found to have not reported post-reinvestigation derogatory information. The derogatory information was so serious for 3 percent of them that they ended up having their security clearances revoked or suspended, according to an Office of Management and Budget report.

It is important for federal employees and contractors to keep in mind that CE programs supplement, instead of replace, the traditional, periodic re-investigations of security clearances. In the Navy, for example, commanders are required to report derogatory information discovered through the CE process that indicates “information and behaviors that bring into question an individual’s trustworthiness, judgment, and reliability to protect classified information.” So derogatory information that calls into question the employee’s or contractor’s allegiance to the United States or that shows inappropriate sexual behavior, as outlined National Adjudicative Guidelines, could result in a commander’s incident report to the DOD Consolidated Adjudication Facility. And that, in turn, can trigger a formal or informal suspension of access to classified information.

A Navy Commander’s Guide to Incident Reporting, states, “In many cases incident reports are resolved favorably and will not affect an individual’s career.” The guide adds that “[a]ttending counseling, corrective training, self-reporting, frequency, factors outside of an individual’s control, etc, has a direct bearing on the outcome of an incident report.” My concern with CE is that employees and contractors with access to classified information may have shorter windows of opportunity to take steps to mitigate any derogatory information found in an automated database search. Rather than having years between re-investigations to develop and implement a plan to address financial problems or personal conduct issues, employees and contractors may have months, weeks or days to take such actions. Agencies must provide these employees flagged in the CE process with the same due process rights afforded to employees and contractors targeted for a security clearance suspension or revocation because of the findings or a regularly scheduled re-investigation, according to a Department of Homeland Security report.

CE is going to push employees and contractors to be more proactive in terms of addressing issues before they end up in a disabling incident report. Under the new framework, having a strategy to mitigate the government’s concerns will be even more crucial. Employees and contractors should consult with an experienced security clearance representation attorney well before the potential security clearance issue grows into an unmanageable revocation or suspension action. Even if a Letter of Intent (LOI) or Statement of Reasons (SOR) has been issued, an attorney could address the issue with Agency security managers or directly with the Defense Office of Hearings and Appeals (DOHA). Either way, a prompt and swift response will be crucial to success.

Greg Rinckey, Tully RinckeyGreg T. Rinckey, Esq. is one of Tully Rinckey PLLC’s two founding partners. Tully Rinckey PLLC is one of the largest federal sector employment, military law and security clearance representation firms in the country. Mr. Rinckey is a recognized leader in the security clearance, military and federal employment law sectors. He can be reached at info@fedattorney.com.